Newman v. Hook

37 Mo. 207

Opinion

'Lovelace, Judge,

delivered the opinion of the court.

This action is founded upon an interpleader filed by the plaintiff Newman in a suit of attachment commenced by Hook against one A. J. Moore in the Callaway Circuit Court. The interplea claims certain personal property levied on in the attachment suit as the property of Moore. The evidence shows that in. 1860 the sheriff of Callaway county, by virtue of divers executions against Moore, levied upon certain real estate and personal property, including the property in controversy, and sold the same. The property in question consists of certain hotel furniture then belonging to Moore, and used in a certain hotel in the town of Eulton known as the “ Moore Hotel.” The sheriff in his evidence says that he levied upon the “ Moore Hotel” and the furniture; that he never took the furniture into possession, nor did he have it at the place of sale; that he sold the hotel and furniture at the courthouse over in the town of Eulton, and that Wm. T. Moore and one Locke became the purchasers; that he had not the property in possession at the time of the sale, nor did he deliver the possession to the purchasers either at that time or afterwards. The evidence does not show whether the property was sold along with the hotel, or whether it was sold separately, but the same parties became purchasers of all.

W. T. Moore and Locke afterwards sold the hotel and furniture to Newman the plaintiff and A. J. Moore, who up to that time it seems had been living in the hotel, pointed out the furniture, and when he moved away left this furniture at the hotel. This was substantially the evidence.

Several instructions were given and refused on both sides, and the case was submitted to the jury, who found for the plaintiff, and judgment entered up accordingly; to reverse-which the case is brought here by appeal.

It will be unnecessary to notice any of the instructions given or refused on either side. There are but two questions presented by the record. Eirst, did the sheriff’s sale pass the title to the hotel furniture to Wm. T. Moore and Locke ? and, secondly, if any title was left in A. J. Moore after the sheriff’s sale, are those claiming under him estopped from setting up that title by virtue of the acts of A. J. Moore in pointing out this property to the plaintiff, pr otherwise recognizing the validity of the sheriff’s sale ?

In order that a sheriff may. pass title to personal property by virtue of an execution sale, there ought, to be a levy, a sale, and a delivery of the property; and to constitute a levy under our statute, there must be an actual seizing of the property. Under the title “Executions,” R. C. 1855, § 74, it is provided that the word.“levy,” as used in this act, shall be construed to mean the actual seizure of the property by the officer charged with the execution of the. writ; and this court in the case of Yeldell et al. v. Stemmens, 15 Mo. 448, held that a sheriff must actually seize the property on a fieri facias before he can sell; and that seems to be the plain and unequivocal meaning of the statute. The evidence in this case fails to show tha.t the sheriff was ever at the house where the property was, or that he ever saw it, or that he pretended in any way to have it under his control. It was not present when it was sold, nor did he attempt to give possession to the purchaser. It does not appear to have been sold separately from the hotel building. It was all sold at the same time and place, and to the same parties. It would be dangerous in the extreme to permit sheriffs to pass the title to personal property upon such sales as this appears to have been. The property of debtors would be sold at a ruinous sacrifice and their debts left unpaid. Purchasers would not bid freely on property that they had no opportunity of examining, and especially when the sheriff was unable to deliver possession, to obtain which might result in a law suit that would cost the worth of the property. We think it very clear that W. T. Moore and Locke acquired no title to the personal property in question by reason of the sheriff’s sale. On this point, however, there was no error, for the second instruction asked by the defendant, and given by the coui’t, correctly stated the law.

In the second place, we will examine and see whether those claiming under A. J. Moore are estopped from asserting his title by virtue of the declarations and acts of Moore. There.is^doubt but a party may be estopped from setting up his title to personal property when he has permitted a third person to deal with it as his own, and has encouraged strang ers to believe that that third person was the owner, and these strangers acting upon this encouragement have acquired rights in the property; then the real owner will be estopped from asserting his right against such persons as have acquired a title or an interest by reason of his encouragement, for the simple reason that it would be a fraud to permit him to assert his claim against a party who had been induced by his admissions or acts to acquire an interest in the property which he would not otherwise have done. In Darrell v. Odell (3 Hill, 219) it is laid down as the rule in cases of estoppel in pais that there must be, first, an admission inconsistent with the evidence proposed to be given or the claim offered to be set up; second, an action by the other party upon such admission; third, an injury to him by allowing the admission to be disproved. This rule was adopted this court in the case of Taylor et al. v. Zepp, 14 Mo. 482. In the case at bar, the plaintiff, without consulting A. J. Moore, or, so far as the evidence shows, even having any conversation with him at all, purchased the hotel and furniture from W. T. Moore and Locke; and after the purchase was perfect, so far as the evidence shows, he went to the hotel, where A. J. Moore was then residing, and Moore pointed out the hotel furniture. The question is whether this estops Moore or his creditors from asserting Moored claim to the property. This branch of the case is purely equitable, and the issue ought to have been fairly stated to the jury: The court below, in the first instruction offered, and its own motion, tells the jury that it was necessary for Moore to consent to the sale from W. T. Moore and Locke, or recognize the same. Now, there may be a vast deal of difference between consenting to a sale before it is made or while it is being made, and recognizing the fact of the-sale after it is made. If A. J. Moore had been present when the sale was made, consenting to it, and thereby disclaiming title himself and inducing the plaintiff to purchase, there would be strong reasons in the absence of fraud for estopping his creditors from setting up his title. But the mere fact that he simply acquiesces in the sale made by a stranger of his property ought not to conclude him from setting up his title afterwards, unless he had full knowledge of his title at the time he yielded the possession. The doctrine of estoppels prevents parties from proving the truth, because they have before that either said or acted falsehoods and third persons have acquired rights upon the faith of those falsehoods being-true, and their rights cannot be destroyed by disproving these former statements. Now, what former statements did Moore make to mislead this plaintiff in his purchase ? — that question, at least, ought to have been submitted to the jury. If Moore had made any former admission with regard to his title calculated to mislead the plaintiff, and that did mislead the plaintiff in his purchase by inducing him to believe that Moore had no title, then Moore’s creditors are estopped, and is the very issue the jury ought to have found. Rut this question was not submitted to the jury, or, at least, not properly submitted; for the instruction given by the court, and before alluded to, was calculated to induce the jury to believe that the sale would be just as binding if recognized by Moore after it was made as it would be if induced by him.

The cause is reversed and remanded for further trial;

the other judges concur.